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S4794 (ACTIVE) - Summary

Relates to life-sustaining treatment standards.

S4794 (ACTIVE) - Sponsor Memo

BILL NUMBER:S4794
TITLE OF BILL:
An act to amend the public health law, in relation to the artificial
nutrition and hydration decision standard
PURPOSE OF GENERAL IDEA OF BILL:
This is one of a series of seven bills, informally referred to as the
"Surrogate Decision-Making Improvement Acts." The bills make
technical/minor, clarifying and coordinating amendments and other
improvements to the NYS laws that govern health care decisions,
including life-sustaining treatment decisions, for patients who lack
decision-making capacity. The SDMIAs address these topics:
* SDMIA 1 Technical / Minor Amendments
* SDMIA 2 Repeals PHL Art. 29-B Orders Not to Resuscitate for Patients
in Mental Hygiene Facilities
* SDMIA 3 Determining Patient Incapacity
* SDMIA 4 Decisions by a Health Care Agent About Artificial Nutrition
and Hydration
* SDMIA 5 Confirm the Primacy of a Patient's Clear Prior Decision
* SDMIA 6 Restore Medical Futility as a Basis for a DNR Order
* SDMIA 7 Life-Sustaining Treatment Decisions for Developmentally
Disabled Persons This bill, SDMIA 4, makes the agents decision

regarding artificial nutrition and hydration consistent with the
Family Health Care Decision Act (FHCDA).
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends section 2980 of the public health law amending the
definition of "health care" to clarify that providing nutrition or
hydration orally, without reliance on medical treatment, is not health
care under the title.
Section 2 amends the model health care proxy form in PHL § 2981.5(d)
to delete a clause relating to agent decisions regarding artificial
nutrition and hydration because of the change made by Section 2.
Section 3 deletes a clause in section 2982 of the public health law
relating to agent decisions regarding artificial nutrition and
hydration to make the decision-making standard consistent with the
standard in the FHCDA, allowing a surrogate to make such decisions
based on the surrogate's wishes, including the principal's religious
and moral beliefs, or if the principal's wishes are not reasonably
known and cannot with reasonable diligence be ascertained, in
accordance with the principal's best interests.
Section 4 is the effective date.
JUSTIFICATION:
This bill makes the decision-making standard for an agent under the
Health Care Proxy Law similar to the standard for a surrogate under
the Family Health Care Decisions Act (FHCDA).
Specifically, the FHCDA provides that a surrogate must make decisions
about life-sustaining treatment, including artificial nutrition and
hydration, based on the patient's wishes or, if the patient's wishes
are not reasonably known, based on the patient's best interests. In
contrast, the 1987 Health Care Proxy Law allows the patient's
designated agent to make decisions about artificial nutrition and
hydration only if the decision is based on the patient's reasonably
known wishes, and not if the decision is based on the patient's best
interests. There is little basis for this disparity in standards.
Moreover, the special rule for decisions about artificial nutrition
and hydration in the Health Care Proxy Law has been a source of
enduring confusion and misinterpretation.
This amendment would make the FHCDA standard, with its careful
definition of "best interests," and which no applies to decisions by
surrogates, applicable to decisions by health care agents.
PRIOR LEGISLATIVE HISTORY:
S. 7154 of 2014; S.5321 (Sen. Hannon) (2013)/ A.7371 (M. of A.
Gottfried)(2013) included all of these provisions, as well as other
provisions.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect ninety days after the date on which this
act shall have become a law. The amendments to article 29-C of the
public health law shall apply to decisions made pursuant to health
care proxies created prior to this act becoming law as well as those
created thereafter.

S T A T E O F N E W Y O R K
________________________________________________________________________
4794
2015-2016 Regular Sessions
I N S E N A T E
April 17, 2015
___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to the artificial
nutrition and hydration decision standard
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 4 of section 2980 of the public health law, as
added by chapter 752 of the laws of 1990, is amended to read as follows:
4. "Health care" means any treatment, service or procedure to diagnose
or treat an individual's physical or mental condition. PROVIDING NUTRI-
TION OR HYDRATION ORALLY, WITHOUT RELIANCE ON MEDICAL TREATMENT, IS NOT
HEALTH CARE UNDER THIS ARTICLE AND IS NOT SUBJECT TO THIS ARTICLE.
S 2. The fourth undesignated paragraph of paragraph (d) of subdivision
5 of section 2981 of the public health law, as added by chapter 752 of
the laws of 1990, is amend to read as follows:
NOTE: Although not necessary, and neither encouraged nor discouraged,
you may wish to state instructions or wishes, and limit your agent's
authority. [Unless your agent knows your wishes about artificial nutri-
tion and hydration, your agent will not have authority to decide about
artificial nutrition and hydration.] FOR EXAMPLE, YOU MAY STATE YOUR
WISHES REGARDING WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING TREATMENT
(INCLUDING HYDRATION AND NUTRITION PROVIDED BY MEANS OF MEDICAL TREAT-
MENT) TO GUIDE YOUR AGENT'S DECISIONS. If you choose to state
instructions, wishes, or limits, please do so below:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
S 3. Subdivision 2 of section 2982 of the public health law, as
amended by chapter 230 of the laws of 2004, is amended to read as
follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04304-01-5

S. 4794 2
2. Decision-making standard. After consultation with a licensed physi-
cian, registered nurse, licensed psychologist, licensed master social
worker, or a licensed clinical social worker, the agent shall make
health care decisions: (a) in accordance with the principal's wishes,
including the principal's religious and moral beliefs; or (b) if the
principal's wishes are not reasonably known and cannot with reasonable
diligence be ascertained, in accordance with the principal's best inter-
ests[; provided, however, that if the principal's wishes regarding the
administration of artificial nutrition and hydration are not reasonably
known and cannot with reasonable diligence be ascertained, the agent
shall not have the authority to make decisions regarding these meas-
ures].
S 4. This act shall take effect on the ninetieth day after it shall
have become a law, provided that the amendments to sections 2981 and
2982 of the public health law made by sections two and three of this act
shall apply to decisions made pursuant to health care proxies created
prior to the effective date of this act as well as those created there-
after.

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